Religious employers, the ministerial exception, and pregnant women

With Easter and Passover almost upon us, what better topic than a new case on the ministerial exception to Title VII?

A federal judge in Ohio has recently refused to dismiss* a lawsuit brought by a former teacher at a Catholic school who alleged that she was let go because of her pregnancy. (The teacher was not married, and she alleged that she became pregnant through artificial insemination.)

*At this very preliminary stage of the litigation, the judge had to accept as true everything that was alleged in the plaintiff’s lawsuit. So it’s possible that the ultimate outcome will be different, and we have not heard the employer’s side of the story.

The case is interesting because it is one of the first “ministerial exception” cases (if not the first) to be decided since the U.S. Supreme Court decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which I blogged about a while back. (Scroll down to “Hail, hail, Freedonia!”)

According to the lawsuit, the plaintiff, Ms. Dias, was a “technology coordinator” for two Catholic schools in the Archdiocese of Cincinnati. Ms. Dias was not Catholic. As technology coordinator, she was responsible for teaching computer to the kids and overseeing the IT systems at the two schools. She did not teach religion and, indeed, was not allowed to teach religion because she wasn’t Catholic.

(By the way, have I mentioned lately that she wasn’t Catholic? I wasn’t sure you got that point.)

Anyway, on a fine Friday in October, Ms. Dias notified one of her school principals that she was five and a half months pregnant. The principal congratulated her and said she did not think the pregnancy would “be a problem.” Notwithstanding this rosy prediction, later that same day, the same principal called Ms. Dias back and told her that she would probably be terminated because she was “pregnant and unmarried.” The next Monday, Ms. Dias told the principal that she had become pregnant through artificial insemination, not extramarital sexual relations. Then she disclosed her pregnancy to the other school principal, who told Ms. Dias right off the bat that her pregnancy “was going to be a problem” because Ms. Dias wasn’t married.

After the schools consulted with Human Resources for the Archdiocese, Ms. Dias was told that she was being terminated for “failure to comply and act consistently in accordance with the stated philosophy and teachings of the Roman Catholic Church.”

At this point, there are a couple of things you may need to know:

*You may have heard that the Catholic Church has some strict rules. Among other things, the Church considers any sexual relations outside of marriage to be a sin. That would include premarital sex, as well as a lot of other things that I shouldn’t get into on a family blog.

*You may or may not have heard that the Catholic Church also considers artificial insemination to be a sin. It does.

OK, you needed to know those things before we moved on. So, Ms. Dias filed suit claiming pregnancy discrimination, and the Archdiocese said her suit should be dismissed because of the ministerial exception. And, as you already know, the judge refused to dismiss the lawsuit.

The judge said that the ministerial exception didn’t apply in this case because the plaintiff was clearly not a “minister.” Although she did work for two Catholic schools, she did not teach religion and wasn’t even allowed to do so because she wasn’t — well, you know, and she did not have the title of “minister,” and she did not, apparently, perform any “spiritual” function whatsoever.

This made her situation different from that of the Lutheran teacher in Hosanna-Tabor, who was a “called” minister, had religious education, taught religion classes, and led her kids in prayers and devotions.

Well, ok, said the Archdiocese, but Ms. Dias signed a contract agreeing that she would abide by Catholic teaching, so by her own admission she has breached her contract, giving us airtight grounds to terminate her employment. Well, maybe, the judge said, but how would a non-Catholic be expected to know that artificial insemination is a sin? (Heck, your honor, I’ll go you one better — I’d bet that most Catholics don’t know that artificial insemination is a sin.) Because the plaintiff is entitled to all benefits of the doubt at this early stage of the lawsuit, the judge said, I have to find in favor of Ms. Dias.

Well, ok, said the Archdiocese, but Ms. Dias is also supposed to be a good example for the students in our schools, and she got pregnant by a means that our Church teaches is a sin. That’s setting a bad example. Well, maybe, the judge said, but we have some legal precedents saying that artificial insemination (as opposed to premarital sex) isn’t so bad for a church-affiliated school*.

*The case cited by the judge concerned a school affiliated with the Church of Christ, which (as far as I know) does not have centrally defined religious dogma and probably no specific doctrine on artificial insemination. So this decision may not be very applicable to a case involving the Catholic Church, which clearly does have a hierarchy, centralized dogma, and a specific teaching prohibiting artificial insemination. (If any readers are members of the Church of Christ, your comments on this point would be welcome.)

We also have some precedents saying a religious employer can terminate pregnant women for being pregnant only if they’re really sanctioning the — cough, cough — activity that resulted in the pregnancy, the judge continued (my paraphrase, obviously!). Put another way, the cases say that it’s not ok for a religious employer to simply focus all of its moral energies on female employees who get pregnant out of wedlock. The religious employer has to also fire female and male employees who do the stuff that sometimes causes women to get pregnant out of wedlock. Otherwise, it’s pregnancy discrimination. No fair to fire the pregnant unmarried women for being “immoral” while letting the men carry on like . . . bunny rabbits. (Not that the Archdiocese was necessarily doing that, but the judge said it was too early in the lawsuit to tell.)

So, Ms. Dias’s case will go forward for now. As far as the Archdiocese is concerned, this shouldn’t be the end of the world because it will have plenty of opportunity to develop the evidence and move for summary judgment later. But the case has a good lesson for religious employers: For the ministerial exception to apply, it helps if your employee’s job involves something “ministerial.”

Are you sure artificial insemination is a sin? Our priest in the Kansas City Archdiocese says that as long as conception takes place in the womb, it is okay.

http://www.constangy.com/people-85.html Robin E. Shea

Hi, DAR – I think the Cincinnati Archdiocese was referring to the Catechism of the Catholic Church at sections 2376-79.

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Stanley P. Santire

First – excellent article. And it raises interesting questions. Would anyone that started following the evolution of workplace rights – and dignitity – beginning with the Civil Rights Act of 1964 (not to mention the Griswold case) believe that we would be dealing with this nonsense in the 21st Century? If we justapose in our mind what a religious organization wants to do in this situation of a pregnant woman compared to what that same organization was doing in matters of child abuse for decades, can we really exclude the word “hypocrisy” from our thoughts? While the Tabor case says some people must leave their civil rights at the door for some employers, that door is not closed to literally all employees of those same employer. As I recall, that same organization bases its teachings on a man who invited some accusers to cast the first stone. Apparently that story is treated more as theory than guidance by that organization.

http://www.constangy.com/people-85.html Robin E. Shea

Whaddaya mean, “PRETTY nice”? I’m just kidding, of course, PSMS – thank you very much for your comment, and we are delighted to have you as a new subscriber!

http://www.constangy.com/people-85.html Robin E. Shea

Hey, Stanley – thanks very much for writing. I’m not sure I see much of a connection between this case and child abuse (I assume you are referring to the clergy sex abuse scandals). The ministerial exception was intended to help the courts stay out of religious business. In a discrimination case, the employer’s defense is usually going to be something to the effect of, “No, we didn’t fire Joe because of his race – we fired him because he didn’t do his job worth a darn!” When Joe is a plumber (get it?), determining that may not be too difficult. But when Joe is a rabbi, and the reason given by the synagogue is that he wasn’t fulfilling his responsibilities as a rabbi, then the courts get mixed up in issues they’d rather stay out of. To avoid even coming close to that type of entanglement, the courts give religious organizations a wide berth whenever the employee has a “religious” function, but not if she doesn’t. That’s why some employees of religious employers have “rights” (like the computer teacher in this case) while some don’t (like the teacher in Hosanna-Tabor). And they could even have the same employer and be treated differently under the law, based on their job functions. It’s really a “separation of church and state” issue.

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Robin Shea has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). Continue Reading

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